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Journal of Contemporary Asia

ISSN: 0047-2336 (Print) 1752-7554 (Online) Journal homepage: http://www.tandfonline.com/loi/rjoc20

Thailand’s Deep State, Royal Power and theConstitutional Court (1997–2015)

Eugénie Mérieau

To cite this article: Eugénie Mérieau (2016) Thailand’s Deep State, Royal Power and theConstitutional Court (1997–2015), Journal of Contemporary Asia, 46:3, 445-466, DOI:10.1080/00472336.2016.1151917

To link to this article: http://dx.doi.org/10.1080/00472336.2016.1151917

Published online: 29 Feb 2016.

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Thailand’s Deep State, Royal Power and the ConstitutionalCourt (1997–2015)Eugénie Mérieau

National Institute of Oriental Languages and Civilizations (INALCO), Paris, France

ABSTRACTThis article challenges the network monarchy approach and advo-cates for the use of the concept of Deep State. The Deep State alsohas the monarchy as its keystone, but is far more institutionalisedthan the network monarchy accounts for. The institutionalisedcharacter of the anti-democratic alliance is best demonstrated bythe recent use of courts to hamper the rise of electoral politics in aprocess called judicialisation of politics. This article uses exclusivematerial from the minutes of the 1997 and 2007 constitution-drafting assemblies to substantiate the claim that the Deep Stateused royalists’ attempts to make the Constitutional Court a surro-gate king for purposes of its own self-interested hegemonicpreservation.

ARTICLE HISTORYPublished online 29February 2016

KEYWORDSConstitutional court; DeepState; judicialisation;network monarchy;Thailand; Thai politics

Prominent scholars have argued that to understand Thailand’s contemporary politics,an examination of formal political institutions is insufficient (Harris 2015; McCargo2005). In an important article, McCargo (2005, 500) has argued that “Thailand’spolitical order is characterised by network-based politics. From 1973 to 2001,Thailand’s leading political network was that of the reigning monarch, KingBhumibol [Adulyadej].” For McCargo, the “network monarchy” is an informal networkof elites composed of the top leaders of the military, members of the bureaucracy andthe palace, centred on the President of the Privy Council, General Prem Tinsulanonda,who has increasingly acted as proxy for the king. McCargo (2005, 516) argues that“royal power” was a “form of network governance.” This network is said to havereinvented itself to cope with Thailand’s last democratisation exercise, launched in1992:

After May 1992, a new system of monarchical governance was refined, one much lessreliant on direct action. Royalists … worked hard to reinvent network monarchy as a moreliberal construct, not paralysed by anachronistic military and bureaucratic preferences forstability and order. (McCargo 2005, 508)

The return to the politics of coup-making, in 2006 and 2014, however, suggests thatthis “new system” and reinvention as a “liberal construct” has failed. In this article, it issuggested that this failure is reflective of the inability of the network monarchy

CONTACT Eugénie Mérieau eugenie.merieau@sciencespo.fr INALCO, Paris, France 2, rue de Lille, 75007 Paris,France.

JOURNAL OF CONTEMPORARY ASIA, 2016VOL. 46, NO. 3, 445–466http://dx.doi.org/10.1080/00472336.2016.1151917

© 2016 Journal of Contemporary Asia

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approach to adequately conceptualise the institutionalised basis of Thailand’s elitenetworks (see Veerayooth and Hewison 2016). In contrast, this article will seek toexplain the resilience of the military-bureaucratic elements of the regime using theconcept of the “Deep State,” which accounts not only for networks, but also for theinstitutions in which they operate.

In examining the power of elites and institutions in various contexts, several authorshave drawn attention to the existence of what they have variously identified as the “dualstate” (Fraenkel 1941), the “parallel state” (Paxton 2004), or as this article will explain it,the “Deep State” (Dale Scott 2008).1 The Deep State can be considered as a state withinthe state, composed of state agents over which civilian governments have limited or nocontrol. The Deep State is organised, autonomous and possesses its own hierarchy andrules. Parallel to the regular state, the Deep State possesses its own ideological stateapparatus that is used to fine-tune the democratic discourse to suit its needs (seeAlthusser 1970). It does so through manipulation of public opinion, using variousmeans including the engineering of crisis and national security emergencies(Tunander 2009, 66). Like the regular state, the Deep State is not monolithic; variousactors and networks engage in power struggles within its framework. However, thefundamental difference between the regular state and the Deep State is that the formeris visible to the people it claims to serve, whereas the latter is hidden and unaccoun-table. The Deep State is the invisible framework under which institutional interests ofunaccountable bodies and co-opted non-state networks are aggregated (Ahmed2012, 79).

Although there is still limited literature on the concept of the Deep State, it has mostoften been described as a powerful and essentially anti-democratic alliance composed ofthe broader security forces, including the military, police and the judiciary, who areinvolved in regular aspects of administration in the visible state, but which alsomaintain a shadow set of activities that has considerable veto power over the regularstate (Tunander 2012). With many of its actions being behind the scenes or secret, theDeep State is able to create “situations” that destabilise or overturn legal governmentsor stage coups against the regular state. The idea of a Deep State has been applied to theUS CIA-led “military-industrial complex” (Morgenthau 1955) and to the Turkish case,where the Deep State is defined as “networks which operate under official cover,without any accountability and mobilized by top military commanders in order toorganize rebellion and public mobilization against particular goals” (Unver 2009, 3). InTurkey, the command structures of the military have long been the main operationalunit of the Deep State. This Deep State has also relied on the judiciary and legal elites todeliver actions and decisions that maintain its control over the regular state (Soyler2014). At times of crisis, the Deep State’s agents will take over the state in order to re-establish its favoured regime.

In the case of Thailand, the Deep State may be considered as composed of stateagents who oppose the rise of electoral politics, from low-ranking civil servants to thehighest-ranking officials. They will often refuse to take their orders from electedgovernments as they see them unfit for administering the country. They seek tomaintain and strengthen a particular and preferred social, political and economicorder with the monarchy as its symbolic keystone. The Deep State and its agents useroyal legitimacy, which they consider derive from the king’s practice of the 10 Buddhist

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virtues, to enhance their power and bypass regular state processes through a processcalled ang barami (to claim royal legitimacy) or peung barami (to depend on royallegitimacy) (see Gray 1986; Unaldi 2013). The more representative of the king theyappear to be, the more barami they can claim. However, their ability to enhance theirpower based on the process of borrowing barami highly depends on the actual baramiof the present king, who was 88 and infirm in December 2015. Unaldi (2014) explains:

As King Bhumibol’s health fades, his charismatic leadership will soon no longer be asource of legitimacy for those who have prospered under his reign. The fear of losing hard-won privileges to the rural masses [through processes of electoral politics] is a very real onefor the royalist elites….

Anticipating an unfavourable royal succession, which promises to bring the feared anddisliked Crown Prince Vajiralongkorn to the throne, Deep State agents have attemptedto create new sources of legitimacy, less reliant on the personal barami of the ill andaging king, but still insulated from electoral politics, as a way of enhancing and securingtheir power in a post-Bhumipol era.

This article will argue that it is the judiciary that has been chosen to become one ofthe Deep State’s main pro-active agents. Several factors guided this movement to thejudiciary. First of all, as McCargo noted, there was a need to “reinvent networkmonarchy as a more liberal construct.” This derived from the political weakness ofthe military following its brutal response to the May 1992 civilian uprising. Shamed bythis, for several years its capacity for political intervention was limited. In addition, thecivilian backlash against the military’s brutality in 1992 saw a movement of the politicaldiscourse to embrace a contested notion of democratisation. Meanwhile, the emergenceof an international discourse on “judicial activism” provided a useful legitimisingdiscourse for allowing the judiciary to engage the political arena (Tate and Vallinder2005). These pressures and trends resulted in the development of an institutionalframework established in the 1997 Constitution that provided for the expansion ofjudicial power, most notably through the creation of a Constitutional Court.

More importantly, Deep State agents as an opportunity to transform the “traditional”and “charismatic” legitimacy of the king into a legal-rational legitimacy through thejudiciary. Judges already had an informal function as the representative of the king,mandated to exert extraordinary powers in times of crisis, and the 1997 Constitutionprovided the opportunity to convert this into formal and legitimate power. The resultwas that the Deep State organised for the Constitutional Court to take on the “king’srole” as defined by McCargo (2005, 501):

The main features of Thailand’s network monarchy from 1980 to 2001 were as follows: themonarch was the ultimate arbiter of political decisions in times of crisis; the monarchy wasthe primary source of national legitimacy; the King acted as a didactic commentator onnational issues, helping to set the national agenda, especially through his annual birthdayspeeches; the monarch intervened actively in political developments…. At heart, networkgovernance of this kind relied on placing the right people (mainly, the right men) in theright jobs.

Consequently, a process of judicialisation of politics unfolded. This process has seenthe judiciary not simply offering a posteriori validity for military putsches in 2006 and2014 as the monarchy had done in the past, but being instrumental in shaping

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situations of institutional crisis that permitted successful military coups.2 In 2006 and2014, constitutional rulings cancelling general elections left the country in situations ofpolitical vacuum favourable to military takeovers. In addition, in 2008, the judiciaryitself managed the ouster of a democratic government. In 2013, the judiciary vetoed theparliament’s attempt at constitutional revision, unveiling the sovereign character of theDeep State.

This article will show that the introduction of constitutional review and otherjudicial mechanisms of check and balance in the 1997 Constitution represented agenuine attempt to launch a conservative democratisation process; it was envi-sioned that elected politicians would be sufficiently deferential to the networkmonarchy to abstain from challenging the structure of the Deep State. However,the Deep State was challenged by the rise of Thaksin Shinawatra. Elected in 2001and re-elected in 2005, the telecommunications billionaire became prime ministerand gained unprecedented popularity, especially in the countryside. In the eyes ofsome in the Deep State, he was becoming a rival to the king, gaining considerablebarami through the implementation of generous and successful pro-poor policies.In response, in 2005, the Deep State provoked and declared an “emergency situa-tion” that allowed it to stage a coup in 2006 and take control of the political orderby establishing the 2007 Constitution. This constitution represented a failedattempt to institutionalise, in the “democratic order,” the king’s power to vetopolitical decisions and nominations in a Constitutional Court with expansivepowers. That the 2007 constitution failed to adequately institutionalise these vetopowers in the Constitutional Court is illustrated in the 2014 military coup wherejudicial interventionism created instability but was unable to complete the jet-tisoning of the elected government without the military delivering the “deathblow.” Thus, the attempted institutionalisation of the Deep State’s role throughthe use of the Constitutional Court as a “surrogate king” was unsuccessful in seeingoff the challenges posed by contested democratisation, political empowerment andthe rise of electoral representation.

The article now turns to an analysis of the Deep State’s attempted transfer oftraditional royal powers onto the Constitutional Court. Responding directly toMcCargo’s (2005, 511) remark about the need of “institutionalising Thailand’s politicalorder” as something “essential, if the country was to avoid a violent crisis at the time ofthe royal succession,” it is argued that such attempt was dedicated to ensuring the DeepState’s resilience in the event of an unfavourable royal succession.

Judicialisation and the Deep State

The role of the judiciary in Thailand’s recent period of political crisis has receivedextensive commentary in recent years (Connors 2008; Dowdle 2009; Dressel 2010;Ginsburg 2009; Hewison 2010; McCargo 2005). These accounts have mostly relied onthe concept of the “judicialisation of politics” as defined by Hirschl (2004, 2) as anexpansion of judicial power beyond its initial scope into the political arena. Although auseful beginning, these studies have not sought to embed judicialisation into an analysisof broader institutional context of the state. Nor have they examined the intentions ofConstitution-drafters in any detail to test Hirschl’s “self-interested hegemonic

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preservation theory” according to which “judicial empowerment through constitutio-nalisation as a form of self-interested hegemonic preservation”:

is best understood as a product of a strategic interplay between threatened political elites,who seek to preserve or enhance their political hegemony by insulating policy making ingeneral and their policy preferences in particular from the vicissitudes of democraticpolitics while they profess support for democracy… When their policy preferences havebeen, or are likely to be, increasingly challenged in majoritarian decision-making arenas,elites that possess disproportionate access to, and influence over, the legal arena mayinitiate a constitutional entrenchment of rights and judicial review in order to transferpower to supreme courts.” (Hirschl 2004, 12)

In what follows, it will be demonstrated that judicial empowerment created by the1997 Constitution was part of a Deep State’s self-interested hegemonic preservationstrategy. The objective was to enable the Deep State to face two sets of challenges:democratisation and the rise of majoritarian politics on the one hand and the aging ofthe king on the other. The practice of the judicialisation of politics that unfolded from2006 onwards is part of such self-interested hegemonic preservation strategy.

The judicialisation of politics requires a constitution that provides for judicialempowerment through the existence of a Constitutional Court and other judicial bodieswith wide authority. The existence of these institutions provides the legal and institu-tional framework for the process of judicialisation.

In Thailand, judicialisation developed in three phases. The first phase of judicialempowerment was the drafting of the 1997 constitution. Although studies have pointedto the role of “liberal royalists” such as Anand Punyarachun and Prawase Wasi(Connors 2002), it was legal scholars Bowornsak Uwanno and Komet Khwanmuangwho advocated for the introduction of a Constitutional Court modelled after continen-tal European courts.3 They envisioned a Constitutional Court that was a kind of“insurance” against the political uncertainty of democratisation (see Ginsburg 2003).

The second phase is identified as beginning with King Bhumibol’s speech to judgeson April 25, 2006, where he urged their intervention to resolve a political impasseassociated with the April 2, 2006 elections which had been boycotted by oppositionpolitical parties. The judiciary responded with considerable enthusiasm. Subsequentdecisions resulted in the annulment of the elections, the sacking and jailing of electioncommissioners and, in 2007, the dissolution of Thaksin’s Thai Rak Thai Party (TRT)which had won elections in 2001, 2005, and claimed a disputed victory in 2006. Theoutcome of this contestation and royally inspired judicial interventionism wasthe September 2006 military coup to oust Thaksin’s government. The judicial empow-erment that paved the way for the coup was then “constitutionalised” in the 2007Constitution developed under military and military-backed regimes. This charter, andthe enhanced role of the judiciary, was shaped by so-called liberal royalist constitutiondrafters to limit the power of elected politicians and to provide institutionalised vetopowers for the Deep State.

The third phase is marked by the Constitutional Court’s effective usurpation ofsovereign power under the 2007 Constitution. Starting with the 2008 dissolution ofthe ruling party and subsequent change of government, which some have referred to asa “judicial coup,” its landmark decision was the July 2012 Constitutional Court decision(Order 29/2555, July 4, 2012) to forbid constitutional revision. This ruling

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acknowledged that sovereign power did not reside in the people nor in their represen-tatives in parliament but resided in the Deep State and the parallel powers it exertedthrough the judiciary to assert political control whenever it deemed necessary.

This article now turns to a closer analysis of these phases of the constitutionalisationand institutionalisation of judicial political intervention. It argues that these processeshave been a result of contested and, ultimately, failed efforts by the Deep State to“manage” a transition to a stable post-Bhumipol electoral regime that embeds the DeepState’s preferred political norms. The resort to military power in 2006 and 2014 isevidence of this failure, leading to a military dictatorship from May 2014 that isengaging in yet further efforts to establish a constitutional and electoral regime thatwill effectively maintain the existing order of social, political and economic power withthe monarchy as its symbolic keystone.

Phase 1: The 1997 Constitution

The 1997 Constitution drafting process was the outcome of a popular movement toreform politics that started in the early 1990s. It led to the creation of a council ofacademics, the Democracy Development Committee (DDC), chaired by Prawase Wasi,to study constitutions abroad and make proposals for Thailand. The DDC published 15booklets about issues deemed important in drafting the new Constitution. Scrutiny ofthese issues reveals that the main concern of the constitution drafters in their search for“better democracy” was to create checks and balances in order eliminate “moneypolitics.” While one of the booklets dealt with rights and liberties the others focusedon issues such as anti-corruption, vote buying, fair elections and checks and balances.This focus stems from the fact that the underlying narrative of the early 1990s amongelite commentators, academics and in the media was that money politics was the evil ofthe political system and a major obstacle to democratisation (see Anek 1996).

This discourse on money politics and vote buying cast doubt on the legitimacy ofelections, and consequently, the entire democratic process. Even though the 1997Constitution was the outcome of popular protest, the resulting institutional architecturewas a response to elite discourses on corruption that cast elected politicians as under-mining democratisation (see Thongchai 2008). This elite discourse found considerablesupport in an international concern for “good governance,” which gained momentumin the 1990s, and was a mirror for Thai elite concerns (see, for example UNDP 1997;World Bank 1994).This discourse was appropriated by Thailand’s elite and hailed as thesolution to the vote-buying and corruption problem. The term “good governance” wasimported, translated in Thai as thammaphiban and redefined with a focus on fightagainst corruption (see Bidhya 2007; Bowornsak 2006). As Connors (2008, 147) puts it,“The 1997 settlement twinned enhanced executive power with institutions that were toscrutinise the exercise of that power, something that was consonant with variousinternational organisations then pushing ‘good governance’.”

The 1997 Constitution adopted many of the features promoted by internationalagencies and international constitutional doctrine, such as the constitutionalisation ofrights and liberties and the creation of a Constitutional Court. The constitution drafterswere also particularly zealous in establishing an anti-corruption framework comprisingseveral independent agencies, the most important ones being the Election Commission

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(EC) and the National Counter-Corruption Commission (NCCC), as well as a SupremeCourt’s Special Division for Holders of Public Offices. In structuring and ordering theseagencies, the Constitutional Court was dominant, with, for example, the findings ofcertain watchdog bodies requiring confirmation by the Constitutional Court before adecision had binding effect (see Harding and Leyland 2011, 162–163).

The 1997 CDC had divided its work into three parts: first, rights and liberties; second,checks and balances; and third, political institutions. The Constitutional Court wasdiscussed in the second category. When the term “Constitutional Tribunal” was pro-posed, it was rejected as the idea was to have a court with wide powers of sanction.4 TheConstitutional Court was modelled after the German Constitutional Court.5 In its finalform, the Constitutional Court comprised 15 justices, with seven judges selected by thejudiciary, and eight qualified people, from law and political science backgrounds, selectedby a committee of political party representatives, judges and university deans. The Senate,fully elected but supposedly apolitical, had to choose the eight qualified people from a listof 16 names (Section 255 and 257, 1997 Constitution). It had wide-ranging powers ofconstitutional review. It could: (i) strike down legislation (both ex ante and ex post) andemergency decrees, rule on references from the courts as to constitutionality; (ii) impeachpublic office holders, consider qualifications to hold public office; (iii) rule on legality ofelections and elections results, and control constitutionality of political party actions withpossibility to order their dissolution; and (iv) hear disputes as to the competence of Stateorgans (Harding and Leyland 2011, 165).

From inception, the Constitutional Court’s actions were counter-majoritarian. Mostof its rulings sanctioned political parties and politicians. Only a few human rights caseswere handled by the Court in its first years of existence, and the rulings often failed toadvance human rights.6 The Court’s main mandate was, in conjunction with the Senate,to act as a veto power on majoritarian politics whose outcomes were uncertain. Severalfactors point to the fact that it was envisioned as a regulatory body that would take overas “moral authority” from the aging king.

First of all, the relationship between the king and the judiciary was strengthened andconstitutionalised. The 1997 Constitution-drafters enshrined the oath of allegiance ofjudges before the king in the Constitution. Article 252 states:

Before taking office, a judge shall make a solemn declaration before the King in thefollowing words: I, do solemnly declare that I will be loyal to His Majesty the King andwill faithfully perform my duties in the name of the King without any partiality in theinterest of justice, of the people and of the public order of the Kingdom. I will also upholdand observe the democratic regime of government with the King as Head of the State, theConstitution of the Kingdom of Thailand and the law in every respect.

While oath-taking wasn’t new, it was for the first time written in the 1997Constitution. Whereas privy councillors and the cabinet also swear an oath of allegianceto the king, members of parliament swear an oath of allegiance to the Constitution. Infact, the wording of Article 252 reveals the 1997 constitution drafters’ view of ahierarchy of norms: upholding the Constitution comes second to upholding the royalistcustomary practice (“the democratic regime of government with the King as Head ofState”), while upholding the law ranks last. Fragile, chaotic and “evil” parliamentariansresponsible for law-making were opposed to strong, stable and “good” king’s judges

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mandated to uphold the continuity of the Thai state embodied in royal customarypractice. This view of a special link between the king and the judiciary is reinforced bythe official practice of judges issuing their rulings “in the name of the King.”

Second, an initial attempt at institutionalising this role of the Constitutional Court asthe “new king” was evidenced in debate over the 1997. The constitution draftersproposed an article whereby the Constitutional Court would be the prime interpreterof “customary practice,” with the first paragraph stating:

In the case where a situation arises for which there is no mention in the Constitution that aspecific organ should give an opinion thereof or decide to act according to the customarypractice of the democratic regime with the King as Head of State, the Constitutional Courtis the body that shall issue an opinion and decide… (1st paragraph of Article 264, CDCminutes, June 24, 1997).

This proposed paragraph meant that whenever there is a political or constitutionalcrisis, “customary practice with the King as Head of State” takes over “regular” con-stitutional provisions; and the Constitutional Court is the body in charge of interpretingsuch practice. This article was to form the basis for the exercise of exceptional crisispowers. However, it was considered too restrictive. Some of the fears were that givingpower to solve deadlocks to the Constitutional Court alone would leave the country in adeadlock in case the Constitutional Court would not take up the case or if the case wasnot forwarded to the Court. This proposed paragraph was consequently moved fromthe title on the Constitutional Court to the General Provisions title, the reference to theConstitutional Court was dropped, and it became Article 7 in the 1997 Constitution -based on previous experience of such article in the 1959 Constitution (WisuthPhothithen, 2nd CDC meeting, Tuesday June 24, 1997).

Beside this proposed role as a king-like supreme arbitrator in times of crisis, theConstitutional Court was also to act as a supreme counter corruption agency. Thosetwo roles played out in 2001 when the newly elected Thaksin was investigated by theNational Counter-Corruption Commission (NCCC) for concealment of assets whendeputy prime minister in 1997. The NCCC had indicted Thaksin in December 2000 forfailing to declare business shares owned by him and his wife. The NCCC vote was astrong 8 to 1 to indict him. Such a ruling, if confirmed, would have seen him removedas prime minister. The ruling was challenged before the Constitutional Court. InApril 2001 the Constitutional Court began two months of hearings on whether touphold the NCCC ruling. Constitutional Court justices finally acquitted Thaksinin August 2001 on the argument that he committed an “honest mistake” (BBC News,August 3, 2001). One commentator wrote: “[T]he judges were torn between twocompeting interests: the need to get tough on corruption – one of the key aims ofthe 1997 constitution – and the importance of recognising the will of the people.Yesterday, democracy won” (World Socialist Web Site, August 7, 2001). Chumpol NaSongkhla, one of the judges who cleared Thaksin of wrongdoing later told journalists:

The reason I voted this way is because I saw how Thai people united to vote for the ThaiRak Thai Party, 11 million of them, this is the supreme voice of the people, who desired tohave Thaksin as prime minister. How could the Constitutional Court, a bit more than tenpeople, force Thaksin out of office? On that day, if the Constitutional Court had ruled thathe was guilty, do you know what would have happened? Have you seen the people who

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massively came to support Thaksin ? Khlanarong [Chantik] had to sneak out of the Courtby a back door! If the Court had forced Thaksin out of office, it would have been burntdown instantly. (The Manager Online, October 14, 2004)

This case marked the first occasion that the Constitutional Court had to deal with thecompeting demands of majoritarianism and good governance principles. This competi-tion was to imprint political life for the next decade. However, there were other reasonsthat pushed the judges to exhibit judicial restraint and refuse to dismiss Thaksin in 2001.

Firstly, in the lead-up to the 2001 Court verdict on his concealment of assets,Thaksin and his supporters engaged in a campaign of court intimidation. Thaksinmobilised his supporters at the Constitutional Court to show his contempt for une-lected justices, and the superiority of his own popular mandate over the mandate givento Constitutional Court justices by the Constitution, referring to his “16 million votes.”Secondly, Thaksin at that time, had the support of the Deep State. One of its agents,Prem Tinsulanonda, allegedly requested the Constitutional Court justices not to con-demn Thaksin (see McCargo 2005, 513). At that time, Thaksin’s policies were likelyconsidered as aligned with the interests of the Deep State. However, this support waslost over the following few years.

Strengthened by this show of support and by his parliamentary dominance, Thaksinbegan meddling with selection of the members of the independent organisations meantto provide checks and balances. Thaksin was alleged to have appointed allies in the 2001appointment of a new batch of election commissioners, the 2003 appointment of NCCCcommissioners, and the appointment of a new Constitutional Court President. The caseof the NCCC later raising their own salaries, for which they resigned and wereconvicted, became a symbol of the failure of anti-corruption agencies (Wikileaks2005). Thaksin also sought to control senior appointments to the judiciary and themilitary (see McCargo 2005, 513). The result was that Thaksin started losing thesupport from the Deep State as he was seen as attempting to control it. There developeda view that the 1997 Constitution had also failed.

The constitution drafters had envisioned a strong executive, but Thaksin’s power wastoo strong and challenged the prerogatives of the Deep State. The phrase “parliamentarydictatorship,” already used in the 1990s, was then revamped to attack Thaksin.Constitution drafter Somkid Lertpaithoon (2008, 18) concluded: “the problem of aparliamentary dictatorship in which the governing political party held absolute controlin the Parliament to result in the legislative – executive checks and balances mechanismbeing skewed and thrown off the balance.” Another Thaksin opponent described theoperation of “parliamentary dictatorship” and personalised it:

Through Machiavellian-style tactics, he [Thaksin] later forced the merger of coalitionpartners, both middle-size and smaller parties, with the TRT to form a uniform, singleparty in power…. In the 5 years during which the TRT led the one-party government, theOpposition was not even once able to open a House debate for a vote of no confidenceagainst the Prime Minister.

Phase 2: The king and judicial empowerment

In early 2006, the People’s Alliance for Democracy (PAD) drew massive support tooppose Thaksin’s “parliamentary dictatorship.” Thaksin dissolved the House on

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February 24 and called for new elections on April 2, 2006. The polls were boycotted bythe opposition Democrat Party, which supported PAD, and by other smaller parties.According to the law, in constituencies where only one party is running, this party mustobtain support of at least 20% of the constituency’s eligible voters. In many constitu-encies, TRT candidates ran alone, and did not gain the required 20%. As a result, theHouse could not reconvene within the prescribed 30 days and no new prime ministercould be declared.

Given the precedents of the royal interventions in the 1973, 1976 and 1992, this crisisalso resulted in calls from PAD and other royalists for the king, considered the“Supreme Arbitrator and Conciliator of the Nation,” to intervene (see Bowornsak2006). In 1973, the king had intervened to end demonstrations against a militaryregime and appointed a judge, Sanya Dharmasakti, as his preferred premier. In 1976,following a massacre of students at Thammasat University, the king appointed a palacefavourite Tanin Kraivixien, also a judge, as prime minister. In 1992, after anti-militaryprotests led to state repression, the king appointed another palace favourite, AnandPanyarachun, as his prime minister. In 2006, calls for a royally-appointed primeminister rose again. The PAD demanded royal intervention, invoking the Article 7 ofthe Constitution, which states: “Whenever no provision under this Constitution isapplicable to any case, it shall be decided in accordance with the convention of theConstitution in the democratic regime of government with the King as head of State.”The king refused, and replied:

I am very concerned that whenever a problem arises, people call for a royally appointedprime minister, which would not be democratic. If you cite Section 7 of the Constitution, itis an incorrect citation. Section 7 cannot be cited. Section 7 has only two lines which saysthat whenever no provision under this Constitution is applicable to any case, it shall bedecided in accordance with the constitutional practice [in a democratic regime with theKing as Head of State] But asking for a royally appointed prime minister is undemocratic.[I] affirm that Section 7 does not empower the King to do anything He wishes. (TheNation, April 26, 2006)

Although the king refused to intervene himself, he advised the courts to step in. Thisseemed to align with draft Article 264, discussed above. On April 25, 2006, the kingheld two separate audiences for judges of the Supreme Administrative Court and theSupreme Court. To the Administrative Court’s judges he declared:

Your oath of allegiance is very important because it is broad. The duty of a judge relevantto administration is very broad. I should not talk this time, but I listened to someonetalking about the election, especially the candidates who received less than 20 per cent ofthe votes. Besides, some of them were the sole candidates in their constituencies, which iscritical. The sole candidatures cannot lead to full membership in the House, because a solecandidate must have support from at least 20 percent [of the voters]. Is this issue relevantto you? In fact, it should be. The issue of the sole candidacy elections is important becausethey will never fulfil the quorum. If the House is not filled by elected candidates, thedemocracy cannot function. If this is the case, the oaths you have just sworn in would beinvalid. You have sworn to work for democracy. If you cannot do it, then you may have toresign. You must find ways to solve the problem. When referring the case to theConstitutional court, the court said it was not their jurisdiction.

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The Constitutional court said they were in charge of drafting the Constitution and theirjob was finished after completing the draft. I ask you not to neglect democracy, because itis a system that enables the country to function.

Another point is whether it was right to dissolve the House and call for snap pollswithin 30 days. There was no debate about this. If it is not right, it must be corrected.Should the election be nullified? You have the right to say what is appropriate or not.(cited in Bowornsak 2006, 77)

These royal remarks were interpreted by many as a royal injunction to the courts to actquickly. A few days after this speech, the Constitutional Court ruled that:

The election yielded results which are unfair and undemocratic, and are therefore uncon-stitutional, being inconsistent with Articles 2, 3, 104 (3) and 114 from the beginning of theelection process, i.e. from the scheduling of the elections, the application of candidates, theballots, and the announcement of the election results. (Decision No. 9/2549 [2006] quotedby Bowornsak 2009, 32)

In overturning the power of the legislature and executive, this judicial interventioninspired by the king appears as a defining act in the judicialisation of Thailand’s politics.According to Hirschl (2004), there are four conditions to judicial empowerment andjudicialisation of politics: (i) election outcomes do not represent the elite’s interests; (ii)election outcomes bring about possibilities of regime change/challenges the state ideol-ogy; (iii) some sort of political deadlock allows the courts to step in; and (iv) powerfulpolitical actors empower the courts.

In case of Thaksin and Thailand, it can be seen that these conditions for judicialisa-tion were met: (i) Thaksin or his proxies have won each election since 2001, and theelite considered that this was likely to continue: (ii) these election outcomes challengedthe Deep State as Thaksin attempted to bring the military and the bureaucracy underhis control; he was seeking to take control of the Deep State; (iii) the 2006 deadlockallowed the courts to step in, as it did in 2014. Both deadlocks were created by thecourts themselves; and (iv) the king directly empowered the justices to act as his proxiesin the political crisis.

This unprecedented and extra-constitutional judicial empowerment was justified aposteriori by an appropriation of the notion of judicialisation. This legal discourse,counter-majoritarian in its essence yet modern and democratic in its character – as oneof the latest developments of democratic constitutional thought in the West – suited theneeds of the anti-Thaksin establishment. Thirayuth Boonmee, a prominent academiccommentator, found the concept attractive as a Western and modern justification foranti-majoritarian views, and was the first to import it. He translated judicialisation astulakanphiwat and used it to justify and explain the king’s speech on April 25, 2006:

The royal speech whereby power to solve the crisis is delegated to the judges is a way ofconsidering the courts as having a broad mission. The rationale behind what Europeancountries call judicialisation of politics [in English] and what the United States of Americacall power of judicial review is for the judiciary to scrutinise the legislative process and theexercise of power by politicians in accordance with the 1997 Constitution. (Thirayuth2006, 17)

Thus, Thirayuth imported judicialisation as a “progressive” concept, linked to a thickconception of democracy that advanced and consolidated democratic societies in the

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West. He argued that the king’s intervention marked Thailand’s “… first step towardjudicialisation through the Constitutional Court and the Administrative Court…,”proclaiming:

According to political theory, how do we understand this royal recommendation?According to the Constitution, as a Head of State, when there is a crisis, the king hasthe legitimacy to make recommendations to one of the three powers to act in order tosolve the crisis. As the chief of the judiciary composed of three courts, which holdmeetings to issue recommendations to other agencies such as the Election Commissionof Thailand …, he has legitimacy [to do so].

Those who accepted this view considered the king as acting democratically and con-stitutionally. His intervention was construed as an act of “good governance,” whereby“good governance” involves decisions by “good people” who are seen to be “abovepolitics.” Moral values incorporated in the “good governance” concept were found to fitmoral values promoted by the king as the key figure in what Bowornsak (2006, 25)identified as the “morality of the society.” He added:

When carefully analysed, the royal discourses and speeches provide guidance on what eachperson should do or refrain from doing, in performing his or her duties as well as onpersonal behavior of a good citizen. The king stresses in particular honesty, integrity,truthfulness, morality and ethics.

As already mentioned, part of the motivation behind the drafting of the 1997Constitution was to relieve the king of some of its prerogatives by passing his defacto veto powers onto courts. The reputation of the judiciary as a neutral institutionof “good people” encouraged the transfer of royal charisma, based on moral virtue, tothe courts.

Here, the courts had destabilised Thaksin through annulment of the 2006 electionswithout the prospect of an upcoming election. However, after some hesitation, Thaksin,refused to resign. New elections were planned for October 2006 and it seemed to manythat they would return a strong majority in favour of Thaksin. Finally, the military hadto “help” and give the final death blow to the government. The military coup ofSeptember 19, 2006 was staged. The Constitution was repealed and a short interimConstitution invoked. All independent agencies and the Constitutional Court weredissolved. However, in the case of the Court, a new Constitutional tribunal composedof career judges was created. All this was done within one day.

In the first few days following the coup, the junta also issued two announcementsthat would propel judicial empowerment to a new level. In one, the junta created theAssets Examination Committee, which would take pending cases related to Thaksin andhis family from the criminal courts and investigate them. Meanwhile, juntaAnnouncement 27 increased the penalty for electoral fraud: political parties whosemembers were found guilty of electoral fraud would not only be dissolved as underthe 1997 Constitution, but the members of the executive committee would also bebanned from politics for five years. Announcement 27 later became Article 237 of the2007 Constitution, giving the Constitutional Court power to impose a 5-year ban on allmembers of parties’ executive committees when ordering a dissolution of a politicalparty. This article would become one of the pillars of the practice of judicialisationunder the 2007 Constitution.

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The first objective of this announcement was to serve as a basis for the dissolution ofthe TRT. And indeed, on May 30, 2007, the renamed Constitutional Tribunal orderedthe dissolution of TRT and revoked the electoral rights of its executives for a period offive years by a six to nine vote. A month before the ruling, the king, in its April 9, 2007speech to judges, stressed the importance of cracking down on corruption and thatjudges were directly mandated by him to exert this prerogative: 7

You have sworn an oath of allegiance, according to which you must perform your duty inmy name. If you do it right, I’ll get the favour of your work performed in the publicinterest. If you don’t do it right, I’ll be dishonoured…. If there is no justice, it meanspeople can cheat and do wrong, and if the courts do not perform their duty to supportgood people, the country will not survive.

This proximity between the institution of the judiciary and the monarchy as establishedin the 1997 Constitution was further enshrined in the 2007 Constitution. The royally-sponsored “good people”/anti- election/corruption narrative became its major under-pinning. Judges were to be involved in the selection and appointment of the Senate. Thegenesis of the 2007 Constitution is well summarised in the words of judge and one of itsdrafters, Vicha Mahakun:

We all know elections are evil, but [why do] many people still want to see history repeated?People, especially academics who want to see the constitution lead to genuine democracy,are naive… Electing senators is a problem, as seen in the past, so why don’t people wantjudges to help select senators? … I would like to recall HM the King’s speech here. OnApril 9, His Majesty told the judges to perform their duties firmly and without caring whatothers might say. His Majesty said if the courts did not support good people, society couldnot survive. His Majesty said it was most imperative [for judges] to ensure justice.… EvenHM the King places trust in the judges; would you condemn them? (cited at BangkokPundit 2007)

During the 2007 Constitution-drafting process, Vicha made the argument that thejudicialisation of politics was an internationally-recognised response to “evil politics”and “corruption.” He quoted the judicialisation of politics in France, Italy and Spain:“The word ‘judicialisation’ emerged in 1980 in Europe, notably in Italy, Spain, andFrance, when it appeared that politics was evil and created nothing but confusion fortheir countries.” (Constitution-Drafting Assembly, 16th session (special session),Thursday April 30, 2007). The failure of the 1997 Constitution was also a failure ofthe Senate. Under the 1997 Constitution, the Senate was fully elected but was designedto be an apolitical or neutral “house of wise men” meant to be to counter “evilpoliticians.” The idea of having efficient checks and balances in the work of constitu-tional organisations rested entirely on this vision for the Senate. It was allocated thepower to nominate, select, appoint and impeach members of independent organisa-tions. Hence, the Senate had 200 members, elected on a first-past-the-post ballot in the76 provinces of Thailand, with members prohibited from political party membershipand electoral campaigning. The result of the 2000 senatorial election and its actionsunder the Thaksin government, however, defeated these intentions. In the eyes of itsarchitects, the Senate had failed.

It was for this reason that the 2007 Constitution drafters made the Senate a half-appointed, half-elected 150-member body, while retaining most of the powers granted

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to it by the 1997 Constitution. Accordingly, 74 Senators were to be appointed by aseven-member Committee, and 76 elected in each province. Under Section 113 of the2007 Constitution, the seven-member selection committee, ostensibly “non-political,”comprised the presidents of the Constitutional Court, the NCCC, the Ombudsmen, theEC, the State Audit Commission, a judge from the Supreme Court and a judge from theSupreme Administrative Court. The point of a half-appointed Senate was to ensure thatthe members of independent organisations and the Constitutional Court were “insu-lated” from political interference. As a result, it created a class of privileged members ofparliament accountable only to the Deep State. It created a kind of “State nobility” thatreproduced itself - and that is how the Deep State works.

Phase 3: Rise and fall of judicialisation

The 2007 Constitution drafters, sympathetic to the idea of the “judicialisation ofpolitics,” and following the 2006 king’s injunction and the ideas of royalist academicThirayuth, intended to give the judiciary the means to act in ways that effectively tookon the king’s role as supreme arbitrator; they intended to give judges royal powers intimes of crisis. In a document outlining the objectives of the Constitution distributed bythe Constitution-Drafting Committee to Constitution-Drafting Assembly members, itwas stated: “Do not let a government which was dismissed act as interim government.”Instead, it was provided that “the Constitutional Court President, the President of theSupreme Court and the Supreme Administrative Court choose a special interim cabinet,which should be comprised of people with experience in administration” (ConstitutionDrafting Committee, Summary of CDC opinions regarding political institutions sub-mitted to CDA, March 19, 2007, Parliament Secretariat, point 5.3: 21).

This proposal was translated into the fourth paragraph of Article 68 in the constitu-tion, softening the draft version, from giving judges the authority to select a cabinet togiving judges the mandate to “meet” to “consider ways to solve the problem.” The finalversion also added representatives from the political branch. In the draft version of the2007 Constitution, Article 68 read:

If there is a national crisis or a political situation where it is necessary, there shall be ameeting of the following: the Prime Minister, President of House of Representatives,President of the Senate, Leader of the Opposition, President of the Constitution Court,President of the Supreme Court, President of the Supreme Administrative Court, andPresident(s) of Independent Agencies under the Constitution, to consider ways to solve theproblem. (Draft of the 2007 Constitution, public hearings version submitted for publichearings in April 2007, Article 68 para. 4)

This paragraph was later withdrawn under popular pressure (Manager online,May 9, 2007). Even so, in its actions following the implementation of the 2007Constitution, the intent of the paragraph and even its earlier version came to beimplemented from 2008 onwards.8

The most emblematic decision of this period is the 2008 dissolution of the rulingPeople’s Power Party (PPP) which threw out this elected government and whichallowed the opposition Democrat Party to form a government. In the first half of2008, the yellow-shirts occupied Government House for 190 days, forcing the

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government to relocate. As leader of the pro-Thaksin PPP, Samak Sundaravej, waselected in December 2007, the first election that took place after the 2006 coup. Hewas later forced to resign as the Constitutional Court ruled that his activity ofholding a cooking show on TV was unconstitutional (Decision DC 12-13/2551,September 9, 2008). He was replaced as prime minister by Somchai Wongsawat.By the end of 2008, the PAD moved to occupy the Bangkok’s international anddomestic airports, creating a major crisis. In December, the Constitutional Courtdissolved the PPP (Decision DC 20/2551, December 2, 2008). MPs had to join otherparties or lose their status, with 32 PPP MPs switching to the Bhumjaithai Partyformed by former Thaksin ally Newin Chidchob. Newin’s MPs switched sides andvoted for Democrat Party leader Abhisit Vejjajiva to become prime minister througha parliamentary vote. The PPP called this event a “judicial coup,” while the PAD andthe Democrat Party declared victory.

Thus, the “airport crisis” – declared a national crisis – was resolved by theConstitutional Court dismissing the elected government and creating an alternativewithout requiring another election. Constitutional Court judge Wasan Soypisuthexplained the Court’s reasoning:

If the country at that time had been peaceful, the government and the opposition couldhave joined hands, the country could have moved forward, and I believe most of the judgeswould have decided not to dissolve the parties…. But the country at that time was chaoticand the Constitution Court had to use its judgement to maintain law and order. (quoted inThe Nation, March 16, 2013)

If judicial activism against parties and politicians developed from 2006 to solve “crisis,”then it was practiced as politically-biased activism. Although the TRT/PPP wasdissolved twice by the Constitutional Court following EC’s resolutions (in 2007 and2008), the Democrat Party escaped this fate following an EC request in 2010 (DecisionDC 16/2553). Such decisions were identified as double standards, and this view wasreinforced when the Constitutional Court found the 2010 red shirt protests illegal(Decision DC 10-11/2553), while other courts found royalist protests in 2014 legal(Bangkok Civil Court, case 275/2557). Likewise, although Democrat Party revisions tothe Constitution in 2009 were permitted, those proposed by pro-Thaksin parties werestruck down by two Constitutional Court rulings in 2012 and 2013 (Order 29/2555;Decision 15-18/2556).

The Constitutional Court’s decisions to prohibit constitutional revision are furtherillustrative of its politicisation. In 2012, the newly-elected government, with YingluckShinawatra at the head of the Pheu Thai Party, sought to amend Article 291 of the 2007Constitution to pave the way for the election of a Constitution drafting assembly. InJune 2012, the Constitutional Court directly accepted individual petitions contesting thelegality of this attempt, based on Article 68 of the Constitution, whose intention was tosanction attempts to overthrow democracy. It states:

No person shall exercise the rights and liberties prescribed in the Constitution to over-throw the democratic regime of government with the King as Head of State under thisConstitution or to acquire the power to rule the country by any means which is not inaccordance with the modes provided in this Constitution.

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In the case where a person or a political party has committed the act under paragraphone, the person knowing of such act shall have the right to request the Prosecutor-Generalto investigate its facts and submit a motion to the Constitutional Court for orderingcessation of such act without, however, prejudice to the institution of a criminal actionagainst such person.

The complaints were made directly to the Court, not filtered by the Prosecutor-Generalas prescribed by the above paragraph.9 In fact, the Prosecutor-General declared that itwould not have forwarded the complaint to the Constitutional Court as the amend-ments were legal (The Nation, June 8, 2012; see also Bangkok Pundit, June 8, 2012). TheCourt accepted the case for consideration but was later dismissed on grounds ofinsufficient supporting evidence (Decision 17-22/2555, July 13, 2012). This dismissaldid not alter the strong signal sent by the acceptance of the case. Politicians were onnotice about the extent to which they could manoeuvre (or rather, not manoeuvre)when dealing with the 2007 Constitution.

In the obiter dictum of the judgement (being a general recommendation annexed tothe judgement but not considered to be binding), the Court recommended that theparliament amend the Constitution article by article or organise a referendum. Thegovernment bowed to the Court and decided to proceed article by article, beginningwith three articles: Article 190 about parliamentary approval for signature of treaties;Article 113 about the recruitment of senators; and Article 68 itself. For the latter, theconstitutional revision consisted merely of a rewording so that no ambiguity couldremain as to whether or not the Prosecutor-General had to screen complaints filed byindividuals before submitting them to the Constitutional Court.

These three attempts were challenged before the Court on the basis of Article 68. InMay 2013, the Constitutional Court decided, on a 5-4 vote, to consider petitions againstthe amendments based on Article 68 (Press release 33/2556, May 13, 2013). OnNovember 20 2013, the Court ruled that amendment to Article 113, making theSenate fully-elected was an attempt to overthrow democracy (Decision 15-18/2556).Considering a constitutional revision attempt to make the Senate a fully elected body,the Constitutional Court quoted the danger of “parliamentary dictatorship.” In doingso, the Constitutional Court blocked any future attempts at revising the Constitution.The Court became the guardian of the “un-revisable” character of the 2007 Constitutionand a key defendant of the anti-electoral spirit of the 2007 Constitution. Some parlia-mentarians who had voted in favour of the move were later charged of “abuse of power”by the National Anti-Corruption Commission (The Nation, January 8, 2014).

Thus, Article 68 was interpreted by judges in such a way that it gave theConstitutional Court a veto power over what constitutes the sovereign act of constitu-tional revision. Claiming that the “democratic regime of government with the King asHead of State” was at risk, the Constitutional Court expanded its power to vetoconstitutional amendments. The use of a “state of emergency” to create a para-legality while retaining apparent adherence to democratic principles is a commonmeans of Deep State action, in democracies and authoritarian regimes alike, asexplained by Tunander (2009, 56):

In fact, this parallel security structure, … what some would call the “deep state,” is the veryapparatus that defines when and whether a “state of emergency” will emerge. This aspect

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of the state is what Carl Schmitt in his work Politische Theologie from 1922 qualifies as the“sovereign.”

The most “innovative” legal creation of the Constitutional Court is the usurpation ofderived constituent power in the case of constitutional revision. According to constitu-tional theory, if Constitutional Court judges are the guardians of the constitutionalorder, they cannot interfere with constitutional revision by the constituent power exceptwith regards to “eternity clauses” (constitutional clauses not subject to revision, such asthe form of the state and the political regime).10

The 2012 move initiated with the proposed revision of Article 68 can be analysed intwo ways, yet both converging to the same conclusion. Either the “democratic regimewith the king as Head of State” is an eternity clause and the existence of an unelectedbody of experts to appoint judicial and political institutions including the Senate is aconstitutive element of such regime; or, there is no eternity clause and theConstitutional Court vetoed the substance of constitutional revisions, exerting defacto sovereign power by invoking royalist customary law. Either way, the Deep Stateproves its sovereignty and preserves its hegemony and the political order.

Conclusion

The 2007 Constitution, with the king’s support, attempted to institutionalise the DeepState in the democratic order by means of the process of judicialisation which was torest in the hands of a restricted circle of actors whose interests are to work toward “elitehegemonic preservation” (Hirschl 2004). It attempted to constitutionalise a Deep Staterelying mainly on judges in the independent organisations and the ConstitutionalCourt, institutions seen as more democratic than the military whose publicly knownrelationship to the monarchy was found to have tarnished the latter.

Like “democratic” military coups d’etat, Constitutional Court political rulings havebeen made in the name of the Rule of Law in the midst of crisis. Most ConstitutionalCourt political decisions have been made on the basis of political opportunity ratherthan legality. They have always been issued against the government in the context ofheavy anti- government protests to which they have brought at best a “victory,” at leasta “solution.”

The Deep State tried to constitutionalise the king’s role through the ConstitutionalCourt to give it a more liberal, more sustainable and less Bhumipol-dependent aspect.In the past, the Deep State had two ways of exerting sovereign power: through directintervention of the king (as in 1973, 1976 and 1992) and through the military. Theprocess of democratisation launched at the end of 1992 discredited both.Acknowledging this and preparing for the end of the reign, the Deep State tried toinstitutionalise itself by resorting to the judges, as a surrogate king’s power. It seemedthat constitution drafters in both 1997 and 2007 were actually seeking ways to makejudges “above” politics and install them in a situation of “revered worship” close to thatof the king by emphasising the relationship between the king and the judges and givingjudges “special powers to solve crisis” such as the power to appoint a prime minister incase of crisis and the power to devise solutions for the country in case of crisis. Bothhave previously been considered royal prerogatives according with constitutional

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practice under King Bhumibol. Thus, in both constitution drafting processes, therewere attempts to transfer those powers to the Constitutional Court and its judges. Thefirst draft of Article 68 did not make it into the 2007 Constitution nor did the first draftof Article 264 in the 1997 Constitution. However, following the king’s April 2006speech, for all practical and political purposes, this transfer happened.

In the end, in the post-1992 environment, if the Deep State could exert its sovereignpower through the Constitutional Court as seen in the overthrow of an electedgovernment in 2008 and in preventing constitutional revision in 2012, it still neededmilitary intervention to fully see off challenges to the political order, with coups in 2006and 2014. The sole reliance on the Constitutional Court (and the half-appointedSenate), as envisioned by the 2007 constitution drafters, proved insufficient to maintainthe Deep State hegemony. This endeavour shows that succession continues to haunt theDeep State. It continues to feel threatened that relying on the charisma of the next kingalone will not be sufficient to ensure the survival of the political order. The hegemonyof the Deep State is still insufficiently institutionalised.

The analysis of judicialisation provided in this article fits the framework provided byHirschl’s theory of judicial empowerment as “self-interested hegemonic preservationstrategy.” In the Thai case, the phenomenon of judicialisation must be understood as adesperate attempt to institutionalise the Deep State to protect it from the challenges ofboth democratisation and royal succession. The 2014 military coup proved that thisattempt is still a work in process.

Notes

1. For a linked discussion, see Chambers and Napisa Waitoolkiat (2016).2. In this reign, a coup is seen as completed when coup-makers are granted an audience with

the king, and/or when the king has signed the Constitution, and/or when he has endorsedthe new government. Likewise, the judiciary has notoriously created a jurisprudencewhereby coups d’etat were always legally valid once successful (see Somchai 2013).

3. Bowornsak Uwanno was Constitution Drafting Committee (CDC) Secretary-General andKomet Khwanmuang was CDC rapporteur on the Constitutional Court. See Minutes ofthe 1997 CDC, KPI database, especially CDC meeting on February 11, 1997 (Propositionof a Constitutional Court design for Thailand by Komet Khwanmuang, followed by adiscussion on the Constitutional Court featuring numerous interventions by CDCSecretary-General Bowornsak).

4. Bowornsak Uwanno and Phongthep Thepkanchana strongly rejected the idea of a“Constitutional Tribunal” in the 11 February 1997 CDC meeting on the ConstitutionalCourt. See Raingan kan prachum kana khammatikan yok rang rattathamanoon wanangkhan thi 11 kumphaphan 2540 [Report on the CDC meeting on TuesdayFebruary 11, 1997].

5. Kamonchai Rattanasakawong, mandated by the DDC to propose a model ofConstitutional Court for Thailand, studied four foreign Constitutional Courts: Italy,Germany, Austria and France. At the end of his study, he proposed a model ofConstitutional Court modeled after the German Constitutional Court (see Kamonchai1995).

6. In a famous case, the Constitutional Court ruled that a section of the law on JudicialOfficials prohibiting people with physical disabilities from taking the examination tobecome a judge was not in breach of the Article 30 of the Constitution, which prohibits

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discrimination on the basis of physical or health conditions. The ruling was overturnedby the 2012 decision of the Constitutional Court 15/2555.

7. The speech is available at: http://www.oknation.net/blog/print.php?id=20345 (accessedDecember 31, 2015).

8. The 2007 Constitutional Court was not fundamentally more powerful than its 1997predecessor; it had the same prerogatives but with a reduced number of justices. Theonly differences were that the 2007 Court could no longer propose constitutional amend-ments, but it could now hear individual petitions from individuals alleging a violation oftheir rights (Article 212). Also, it had wide-ranging powers of appointment.

9. Both article 63 of the 1997 Constitution and article 68 of the 2007 Constitution did notallow complaints to be filed directly with the Court. The Constitutional Court hadrejected direct complaints in its first years of existence. In 2006, SurapongTovichakchaikul had filed a petition asking the Constitution Court to order theDemocrat Party dissolution under Article 63 that became article 68 of the 2007Constitution. The Constitutional letter replied in a formal letter that the complaint hadto pass the Prosecutor-General first. For more details see Bangkok Pundit, “Why has theThai Constitution Court changed its interpretation of the law?” June 13, 2012, http://asiancorrespondent.com/84027/why-has-the-thai-constitution-court-changed-its-interpretation-of-the-law/ (accessed December 12, 2013).

10. The literature on this topic is well-established (see Klein and Sajo 2012).

Acknowledgements

The author would like to thank Kevin Hewison for his invaluable comments on several drafts ofthis article. The author is also grateful to Henning Gläser and the German-Southeast AsianCenter of Excellence for Public Policy and Good Governance, Faculty of Law, ThammasatUniversity, for funding some of the empirical research used in this article.

Disclosure statement

No potential conflict of interest was reported by the author.

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